In a Virginia DWI prosecution, can the breath-test number written on the arrest warrant prove the defendant's blood alcohol level?

Plain-English summary

Virginia Attorney General Robert F. McDonnell concluded in 2008 that a certificate of analysis was the proper evidence of a defendant's blood alcohol level in a driving-while-intoxicated prosecution. The opinion distinguished that certificate from a breath-test result written on the arrest warrant.

The statutes then governing blood and breath testing said a properly prepared certificate "shall be admissible" as evidence of the facts and test results. The opinion also explained that the breath-test certificate created a rebuttable presumption of intoxication and was not hearsay merely because a machine generated the result.

By contrast, the opinion described a warrant as generally not being evidence of guilt. It acknowledged that courts had sometimes accepted warrants without objection to prove a particular point, but it did not treat that practice as a replacement for the statutorily authorized certificate of analysis.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Delegate Christopher K. Peace reported that some localities wrote a suspected driver's breath-test result on the arrest warrant when the person appeared before a magistrate. Some trial judges refused to consider that notation, leaving the Commonwealth unable to prove the blood alcohol level needed for enhanced punishment under certain statutes.

The opinion relied on §§ 18.2-268.7 and 18.2-268.9. At the time, those provisions made properly prepared certificates of analysis admissible in criminal and civil proceedings as evidence of the stated facts and test results. It also cited 18.2-269(A) for the rebuttable presumption associated with a qualifying breath-test result.

The AG contrasted that statutory route with the ordinary role of an arrest warrant. Citing Swift and Crowder, the opinion said a warrant was generally not evidence of guilt. It cited Johnson only to recognize that an unobjected-to warrant had sometimes been sufficient proof of a particular element.

What the AG concluded

The certificate was the proper blood-alcohol evidence. The opinion answered the presented question directly: "the certificate of analysis is the proper evidence of the defendant's blood alcohol level."

A warrant notation did not replace the certificate. Although a warrant could sometimes be received without objection on a particular point, the opinion treated the certificate, not the warrant, as the evidence contemplated by the blood- and breath-testing statutes.

The certificate's evidentiary status came from statute. The opinion quoted the statutes' direction that qualifying certificates "shall be admissible" and noted the rebuttable presumption attached to a breath-test certificate.

Common questions

Did the opinion say a breath test itself was inadmissible?
No. It said the proper evidentiary form was the certificate of analysis prepared under the statutory rules, rather than the test result merely written on the arrest warrant.

Why did the warrant notation matter?
The requested opinion arose because some judges refused to treat the handwritten or entered test result on the warrant as evidence. The AG agreed that the certificate was the proper proof of blood alcohol level.

Could an arrest warrant ever be used as evidence?
The opinion noted that Virginia appellate courts had upheld some convictions in which warrants were accepted without objection to prove a particular point. It still concluded that the certificate was the proper blood-alcohol evidence in a DWI prosecution.

Citations

• Va. Code Ann. §§ 18.2-268.7(B), 18.2-268.9 (certificates of analysis)
• Va. Code Ann. § 18.2-269(A) (rebuttable presumption)
• Luginbyhl v. Commonwealth, 46 Va. App. 460, 618 S.E.2d 347 (2005)
• Swift v. Commonwealth, 199 Va. 420, 100 S.E.2d 9 (1957)
• Crowder v. Commonwealth, 41 Va. App. 658, 588 S.E.2d 384 (2003)
• Johnson v. Commonwealth, 21 Va. App. 102, 462 S.E.2d 125 (1995)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2008/08-065-Peace.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Robert F. McDonnell

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Attorney General

September 22, 2008

The Honorable Christopher K. Peace
Member, House of Delegates
P.O. Box 819
Mechanicsville, Virginia 23111
Dear Delegate Peace:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of
the Code of Virginia.
Issue Presented
You ask what evidence is acceptable in a prosecution for driving while intoxicated. Specifically,
you ask whether the evidence may be the breath test result, recorded on the arrest warrant, or whether the
certificate of analysis is required.
Response
In a prosecution for driving while intoxicated, it is my opinion that the certificate of analysis is
the proper evidence of the defendant’s blood alcohol level.
Background
You advise that in certain localities, when an individual suspected of driving while intoxicated is
taken before a magistrate, the result of the breath test is entered on the arrest warrant. Further, you note
that some trial court judges find this notation improper and refuse to consider it as evidence. Therefore,
you state that the Commonwealth is unable to prove the necessary blood alcohol level to mandate the
enhanced punishment under certain statutes.
Applicable Law and Discussion
Pursuant to §§ 18.2-268.7 and 18.2-268.9, a certificate of analysis of blood alcohol content is
admissible as evidence. A certificate of analysis for a blood test, when performed in accordance with the
statutory rules, “shall … be admissible in any court, in any criminal or civil proceeding, as evidence of
1
the facts therein stated and of the results of such analysis.” Additionally, such a certificate for a breath
test, when performed in accordance with the statutory rules, “shall be admissible in any court in any
2
criminal or civil proceeding as evidence of the facts therein stated and of the results of such analysis.”
1

VA. CODE ANN. § 18.2-268.7(B) (Supp. 2008).
Section 18.2-268.9 (Supp. 2008).

2

The Honorable Christopher K. Peace
September 22, 2008
Page 2
3

The certificate for a breath test creates a rebuttable presumption of intoxication and is an exception to the
4
rule of hearsay evidence.
Conversely, a warrant, as a general rule, is not evidence of guilt and should not be accepted as
5
such. Indeed, because the only “evidence” of an essential element of the crime of conviction came from
the prosecutor’s statements and the indictment, the Court of Appeals of Virginia overturned a felony
6
conviction for insufficient evidence.
Warrants sometimes are accepted, absent any objection, as evidence on a particular point in
7
criminal prosecutions, and Virginia appellate courts have upheld these convictions. However, it is the
certificate of analysis, not the warrant, that is the proper evidence of a defendant’s blood alcohol content.
Conclusion
Accordingly, in a prosecution for driving while intoxicated, it is my opinion that the certificate of
analysis is the proper evidence of the defendant’s blood alcohol level.
Thank you for letting me be of service to you.
Sincerely,

Robert F. McDonnell
3:339; 3:1076; 1:941/08-065

3

See 18.2-269(A) (Supp. 2008); see also Wing v. Commonwealth, Case No. 1760-03-4, 2004 Va. App. LEXIS
368, at *14-16 (Va. App. Aug. 3, 2004) (noting that § 18.2-269 creates rebuttable presumption that person tested was
under influence when “breath test shows a reading of 0.08% or greater”).
4
See Luginbyhl v. Commonwealth, 46 Va. App. 460, 466-67, 618 S.E.2d 347, 351 (2005) (noting that evidence
that is not statement from human witness or declarant is not hearsay; breath test is generated from machine and
result does not constitute hearsay), substituted opinion, on reh’g at, en banc, 48 Va. App. 58, 65-66, 628 S.E.2d 74,
78-79 (2006) (assuming without deciding that breath analysis result was harmless error and declining to address
constitutional issue).
5
See Swift v. Commonwealth, 199 Va. 420, 425, 100 S.E.2d 9, 13 (1957); see also Crowder v. Commonwealth,
41 Va. App. 658, 663-65, 588 S.E.2d 384, 387-88 (2003) (rejecting prosecutor’s statement of damage amount as
listed in indictment).
6
See Crowder, 41 Va. App. at 664-65, 588 S.E.2d at 387-88.
7
See, e.g., Johnson v. Commonwealth, 21 Va. App. 102, 106-07, 462 S.E.2d 125, 127 (1995) (holding that arrest
warrant was sufficient to prove criminal element that defendant was in custody).